R v John Leonard Freeland & Anor

Garden Mill Ltd ('the Company') and its director, Mr John Freeland, were sentenced on 19 August 2024 by His Honour Judge Peter Blair KC, sitting in the Crown Court at Bristol, to fines for breaches of Stop Notices and Enforcement Notices. The Stop Notices and Enforcement Notices had been imposed by the local planning authority in relation to a development of 32 homes in Kingsbridge, South Devon. In addition to the fines, Mr Freeland and the Company were ordered to pay additional sums towards prosecution costs. In the Company's case the total amount was £140,000, comprising fines of £100,000 and costs of £40,000. In Mr Freeland's case the total amount was £156,000, comprising fines of £76,000 and costs of £80,000. They appeal against sentence with leave of the Single Judge on the grounds that they are unable to meet the fines and costs.

The fines were imposed for breaches of a Temporary Stop Notice imposed on 14 May 2021, in respect of which Mr Freeland and the Company pleaded guilty at the Magistrates’ Court on 3 November 2022; and breaches of two Stop Notices and two Enforcement Notices which were charged on an indictment to which the Company pleaded guilty on 13 September 2023 and Mr Freeland pleaded guilty on 4 December 2023.

Since the sole ground of appeal for which the appellants have leave relates to their ability to pay the financial penalties, not whether they were otherwise appropriate sentences, we can deal with the facts of the offending relatively briefly.

Mr Freeland was involved as a director of about 10 companies which had undertaken or were undertaking developments of housing sites across the South of England. Outline planning permission for the development of the Kingsbridge site had been granted by South Hams District Council ("the Council") in 2017 to an unassociated company, H2Land Ltd, for the development of the site to build 32 homes. The outline planning permission was subject to a number of conditions, the relevant ones for present purposes being conditions 6, 9, 10, 11 and 13. Condition 6 related to the protection of trees on the site. The other conditions required a construction management plan to be submitted and approved in writing by the Council before any site clearance or preparatory work took place, and those conditions sought to protect local residents by restrictions on site traffic and other measures.

The Company bought the site in early April 2021 for £720,000 and almost immediately started undertaking site clearance and preparatory development works. One estimate of the value they put on the developed site was £21 million. Another projection identified that it was anticipated that each of the 32 properties would be sold for in excess of £500,000. The Company persisted in carrying out development works for about 6 months between May and October 2021 in deliberate breach of the planning permission conditions and in breach of the conditions of the Stop Notices and Enforcement Notices issued by the Council. Mr Freeland was a director of the Company and closely involved in arranging the work on site and in communicating both with Council representatives and the personnel involved in carrying out the development works. He did so in full knowledge of the breaches and in open defiance of the Orders in the face of numerous interventions by police and Council officers. A flavour of his attitude is to be found in an email he sent to his then building contractors on 16 May 2021 stating that he was going to ignore the Temporary Stop Notice and a tree preservation order. He said it was "business as usual" and referred to "the gloves coming off". He signed off with the SAS emblem saying, "Who dares wins, as it won't be them" — not, as it turned out, a prescient prediction.

Section 124(1) of the Sentencing Act 2020 provides that before fixing the amount of a fine to be imposed on any offender who is an individual, the court must inquire into the offender’s financial circumstances. Section 125(2) provides that in fixing the amount of any fine to be imposed on an offender, whether an individual or other person, the court must take into account the financial circumstances of the offender so far as they are known or appear to the court.

It is to be noted that there is no duty to inquire into the financial circumstances of a company, although the court must take them into account when fixing the amount of a fine, just as it must for an individual in respect of whom the duty of inquiry is imposed by s. 124(1). Nevertheless individual defendants as well as corporate defendants bear the primary responsibility of providing such information to the court. It is for the defendant facing a financial penalty, whether a fine or an order to pay prosecution costs and whether an individual or a corporate defendant, to disclose to the court such information as will enable the court to assess what they can reasonably afford to pay; in the absence of such disclosure, the court may make reasonable inferences from all the circumstances of the case as to the defendant’s means and ability to pay.

Section 126 of the Sentencing Act provides, amongst other things, that if an offender has failed to cooperate with the court in its inquiry into the offender's financial circumstances and the court considers that it has insufficient information to make a proper determination of the financial circumstances of the offender, it may make such a determination as it considers appropriate.

The position was explained by Lord Bingham CJ in R v North Allerton Magistrates’ Court ex parte Dove [2000] 1 Cr App (S) 136, 142, 143 as follows:

Mr Freeland represented himself and the Company at the sentencing hearing. At sentence there was limited information as to the means of either defendant to pay financial penalties. What had happened was that on 16 July 2024 (some five weeks before the date of sentence and when the sentencing date was fixed for 19 August 2024 was set) Mr Freeland and the Company were ordered to provide information as to their finances by 2 August 2024. The plan was that there would then be a meeting between all parties before the sentencing date to discuss and if possible agree, an appropriate financial penalty.

Despite chasing for that information, no financial information was provided by either Mr Freeland or the Company within the time required or before the day of the sentencing hearing, and so no such meeting could take place.

On the morning of the sentencing hearing, 19 August 2024, Mr Freeland provided the court with two sources of financial information. One was what purported to be a two-page statement for July 2024 of his personal bank account in his own name at Metro Bank; the other was what purported to be financial accounts for the company as at February 2023. We shall return to those documents.

The case was called on in the morning in order for the prosecution to open the facts. A full and detailed written sentencing note from the prosecution had been provided in advance. Amongst other things it asserted that the position of the Company was that it was insolvent. When the matter came on in the morning the Judge noted that he could put matters back to make an order, which he had power to make, that there be a report into Mr Freeland's and the Company's finances; alternatively, he could proceed to sentence immediately on that day, which he indicated could include drawing adverse conclusions from the lack of material provided by the defendants. When faced with that choice, Mr Freeland indicated that he did not want to present any further financial information.

The case was then put back until later in the morning while the Judge dealt with other matters, and sentencing took place in the afternoon, after hearing the prosecution opening, and Mr Freeland advance mitigation on behalf of himself and the Company.

The documents put forward by Mr Freeland were wholly inadequate to support a suggestion that he or the Company were unable to pay the sums in question. The Judge knew from the papers that Mr Freeland was involved in numerous companies which were developing and/or had developed a number of sites across the South of England, all with Blakesley Estates in the company name. Mr Freeland told the Judge that they had 10 sites currently on the go and were completing 50 to 70 units a year. There was evidence to suggest that there had been a number of intercompany transfers between these companies.

The only document produced as to Mr Freeland's personal financial circumstances was the two-page Metro Bank statement for July 2024. In that two-page document the balance had been redacted so that the amount on the account was concealed. The payments included a figure of about £3,000 from an entity called Compass Ltd and an outgoing payment of about £3,400 for a mortgage. It is apparent from the documents to which we shall refer which have been produced in support of the appeal that this "statement" was not only redacted but was incomplete, missing the first page which has a number of entries.

As to the financial position of the Company, the unsigned "accounts" as disclosed were described as "unaudited and filleted" and it was apparent from their formatting that they were very heavily redacted. They were not signed by Mr Freeland or any director or officer of the Company; they were not supported by any underlying documentation or any letter or other evidence from anyone who had prepared them. The only figures they contained were a balance sheet, which purported to show current assets of about £3.2m after deductions for creditors falling due within one year; and long-term creditors of some £3.4m which therefore reduced the net asset position to one of net liabilities of about £200,000. The notes to these figures were redacted. Those figures do not suggest a company which is insolvent. It had short-term assets in a large amount, albeit longer-term liabilities, and it is a picture which might reasonably be expected of a company undertaking a development.

In those circumstances we have no hesitation in saying that the Judge made no error in treating both appellants as having the financial means to pay the financial penalties he proposed. There was simply no credible evidence advanced to suggest the contrary. Ms Smart, who has appeared before us and has presented her submissions, if we may say so, with conspicuous skill and persistence in the face of having to advance a difficult case, suggested that the Judge should have assumed that Mr Freeland had no significant assets from the fact that he was representing himself. That is not an assumption he was obliged or even entitled to make. The Judge was entitled to proceed on the basis that he was a 59-year-old businessman whose businesses involved investments and receipts measured in millions of pounds and who could reasonably be expected to have significant assets and sources of income. The redacted two-page July 2024 Metro Bank statement did not begin to cast doubt on that as a reasonable approach. It did even seek to explain the position in relation to all Mr Freeland's assets and income, let alone support it with evidence. The Judge was entitled to draw an adverse inference that his deliberate choice not to put any further information before the Court about his assets and income, despite having been ordered to do so, was because they were substantial and could meet whatever fine or costs order the Court thought appropriate. The same is true in relation to the Company, for whom the only evidence adduced was the unaudited, unsigned and filleted "accounts" for the previous February suggesting a healthy short-term asset position. It is true that the prosecution had described the company as insolvent, but there was no evidence before the Court to support that assessment.

Ms Smart relies upon the fact that after passing sentence and when setting the time for payment, the Judge stated: "If there are submissions that later on you need to bring back saying that these are the detailed financial positions and it can't be done, then we'll have to review the position." That was said in relation to a timetable for payment, not ability to pay as such. In fact no such submissions were ever made to the Judge, let alone with the detailed financial information which would have been necessary.

On the appeal, the original grounds were drafted by Mr Freeland and exhibited two letters from Lohur & Co Ltd ("Lohur"), chartered accountants. One, dated 5 September 2024, identified that Mr Freeland was a director of a number of "Blakesley Estates" companies for whom Lohur acted as accountants. The letter said that they were all loss making, had no net assets, and that the unaudited current debts for all such companies were approximately £40m. The letter attached Mr Freeland's Metro Bank statement for August 2024, which had a balance of some £8,000. The letter explained that the payment into the account for that month of about £3,000 from Compass was the monthly payment of an annual salary that Mr Freeland was receiving from "Blakesley Estates". It did not identify which Blakesley Estates company that meant. The letter asserted that Mr Freeland's only asset was a 50 per cent share in his family home which had negative equity. The foot of the letter stated that the information was provided by Lohur "without prejudice and without acceptance by us of any responsibility whatsoever". The second letter from Lohur, dated 4 September 2024, related to the Company's position. It referred to the February 2023 "accounts" and said that the (long-term) debt of about £3.4m had now increased to some £8.1m. It stated that a Receiver had been appointed over the Company's assets by its lenders on 19 August 2024.

In further amended/perfected grounds of appeal prepared by Ms Smart, who as we say has appeared before us, further Metro Bank statements were produced. These were for the months of June to October 2024, and January to March 2026. In addition, there were documents evidencing that administrative receivers had been appointed over the Company's assets on 10 May 2025 and 15 January 2026, and that a bankruptcy order had been made in respect of Mr Freeland personally on 26 November 2025 (which in the ordinary course will be discharged automatically in November 2026).

There was no application to adduce this material as fresh evidence. When we challenged Ms Smart about this and about whether she was making such an application there was obvious prevarication and reluctance on her part to make such an application. Nevertheless in the end she confirmed, clearly on instructions and without any apparent enthusiasm, that she was making such an application informally.

We would unhesitatingly refuse that application for at least three reasons.

First, it is not permissible to make such an application informally in this way, at least in the circumstances of this case. What is required is a Form W and signed witness statements in accordance with section 9 Criminal Justice Act 1967 containing the evidence of each witness, and if documents are relied on, attesting to the nature and provenance of the documents. That is not a mere idle insistence on form. A section 9 statement is an important safeguard to ensure that the evidence is clear in its terms and is given in the knowledge that there can be consequences if it is perjured; and is also important in explaining any documents relied upon. It is often the case that in determining whether such fresh evidence might support an appeal, the court hears the evidence de bene esse and has it tested by cross-examination. Unless the application is in proper form with signed statements, the Court is not in a position to determine whether directions should be given to enable that to take place, and if it is to take place, the prosecution will not have the proper notice required in order to prepare cross-examination if the evidence is not set out clearly and in terms in a statement. As will be apparent from what we go on to say, had the "fresh evidence" been in proper form it is very likely that the Court would have required Mr Freeland to be cross-examined about it. It is not irrelevant that Mr Freeland had previous convictions for making false statements and concealing information as a bankrupt in 2014.

Secondly, the material which it is sought to adduce as fresh evidence was in its material substance readily available to Mr Freeland and to the Company at the sentencing hearing relating to the financial position at that time. A considered and conscious decision was made not to adduce any more information before the Judge, despite having been ordered to do so and been given a further opportunity by the Judge at least to seek to do so after having failed to comply with the order. It is contrary to the interests of justice for appellants to be able to save up evidence for an appeal having deliberately decided not to adduce it at the relevant hearing and then finding that that has rebounded against them.

Thirdly, and in any event, the new material raises more questions than it answers. It demonstrates that the July Metro Bank statement had not merely been redacted but was an incomplete statement for that month. The other statements now produced are incomplete, omitting those for the last two months of 2024 and the whole of 2025. This is unexplained, and it is fair to infer deliberate. Those which have been disclosed reveal a payment from "Rastrick Ltd" on 13 September 2024 of £53,500. This is entirely unexplained both as to what that company is, what connection it has with Mr Freeland and what its sources of income are. Again, it is fair to infer that this is deliberate. A payment of £10,000 goes out to an account in Mr Freeland's name at the Co-Operative Bank. This account had not been disclosed to the Judge. It is fair to infer that the natural implication is that the impression the Judge was given was that the Metro Bank account was the only relevant personal account which he had had. Even if this implication is not made, Mr Freeland faces the difficulty that he nowhere states, even now, that he has no other accounts or assets. He has not produced any bank statements for that Co-Op account. Ms Smart said on instructions that it had been closed and that he no longer had access to statements. However, it is apparent from what we have already said that dealing with the matter on instructions in that way is entirely unsatisfactory. The bald assertion in the accountant’s letter that he has no assets other than equity in his home is entirely worthless when expressly qualified by a statement that it is made "without accepting responsibility", when it is not made by Mr Freeland personally, and when there is no independent documentary evidence to support the assertion that there is negative equity in the family home.

As far as the Company is concerned, there are still no accounts, even unaudited accounts, signed by any director for any period, and none which purport to speak to the position at the date of sentence. The filleted unaudited accounts at February 2023 suggest that there were a number of intercompany transfers between the Company and other Blakesley Estates companies. There is no information as to the position of all the companies, who the beneficial owners are, what the financial status of the beneficial owners and the directors are, and why they would be unable to fund the company to pay the fines and prosecution costs if it is now said that they are unable to do so.

In short, therefore, and taking into account the matters required to be taken into account by section 23 Criminal Justice Act 1968, there is no evidence in a form which should be treated as coming within subsection (1)(c) of the section as "evidence"; there is no reasonable explanation for failure to adduce the evidence in the proceedings; and it is not material which would afford a ground for allowing an appeal. We therefore refuse to admit it as "fresh evidence".

In those circumstances and for those reasons, the appeal of each appellant is dismissed.